Brown v. State

• Decision Date: 17 March 2000
• Docket Number: No. A99A1819.,A99A1819.
• Citation: Brown v. State, 242 Ga. App. 858, 531 S.E.2d 409 (Ga. App. 2000)
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

531 S.E.2d 409

242 Ga. App. 858

BROWN v. The STATE.

No. A99A1819.

Court of Appeals of Georgia.

March 17, 2000.

Michael S. Katz, Avondale Estates, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee. MILLER, Judge.

Based on his confrontations with three separate victims in the Carver Homes area within a five-week period, a jury found Randy Brown guilty of aggravated assault with a deadly weapon, two counts of aggravated assault with the intent to rape, two counts of burglary, criminal attempt to commit burglary, and peeping Tom. From the denial of his motion for a new trial, Brown appeals, urging seven enumerations of error. We affirm.

1. Brown challenges the sufficiency of the evidence on each conviction. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and Brown no longer enjoys the presumption of innocence.¹ An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.² As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.³

(a) With respect to Victim-1, Brown was found guilty of aggravated assault (Count 1), aggravated assault with the intent to rape (Count 2), and burglary, with rape as the intended felony (Count 3). Construed to uphold the jury's verdicts, the evidence shows that on June 6, 1995, at approximately 3:45 a.m., Brown entered Victim-1's home located across the street from Carver Homes. Brown crawled onto Victim-1's back as she slept in her bed, pressed a knife to her neck, and then began fondling her genital area. She partially rolled over to identify her assailant. Because the streetlights directly outside the bedroom window provided light in the room, she was able to see Brown. Wearing only boxer shorts and holding her down, Brown kissed her neck and demanded that she open her legs. Brown tossed the knife onto a nearby chair.

Terrified she would be raped or otherwise hurt, Victim-1 tried to remain calm to devise an escape. She offered Brown her money and valuables, but he declined. Talking to Brown, she ascertained that he lived in the area and that he stuttered. She lured Brown out of the bed and into the living room under the guise of searching for a condom.

Despite his warning her to not turn on any lights, she turned on the hall light and saw Brown's face. Brown shoved her, then turned off the light. She suggested turning on a closet light to aid in walking through the rooms. When Brown entered the walk-in closet, she fled through the front door. She later returned to her home to find her back door open and a window, which was operational and locked the night before, jammed open so that it no longer operated.

Without any hesitation, Victim-1 identified Brown in a photographic lineup and again at trial. Brown testified at trial that he has stuttered all of his life and that he lived in Carver Homes. With respect to the first victim, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brown was guilty of each offense alleged in Counts 1, 2, and 3 of the indictment.

(b) Regarding Victim-2, Brown was found guilty of aggravated assault with intent to rape (Count 4) and burglary with rape as the intended felony (Count 5). Construed to uphold the jury's verdicts, the evidence shows that on June 29, 1995, at approximately 4:10 a.m., Brown entered Victim-2's home located in Carver Homes. Victim-2 awakened in her bed to find Brown fondling her genital area. In the illumination of the hall light, bathroom light, and streetlights, she stared at Brown's face and "evil smile." Brown left the bedroom, then returned and punched her. Brown left the home.

Victim-2 later found the front door, locked the previous night, open. She also discovered an open window, which had been closed the night before, and a screen missing from that window. The screen was later found near the home of Brown's grandmother. Without any hesitation, Victim-2 identified Brown from a photographic lineup and again at trial.

(i) Brown contends that the State failed to prove aggravated assault because he had no deadly weapon. This contention is without merit. The jury found Brown guilty of an assault aggravated by his intent to rape, which is entirely distinct from the crime of aggravated assault with a deadly weapon.⁴

(ii) Brown contends that the evidence was insufficient to authorize the jury to find intent to rape, which was necessary for Counts 4 and 5. Victim-2 testified that she woke up to find Brown fondling her genital area. Generally, specific intent must be proved by circumstantial evidence, and the question of whether a burglary defendant intended to commit a given felony when he entered a dwelling is for the jury's determination.⁵ The evidence authorized the jury to find intent to commit rape.⁶

(iii) Brown contends that because there was no evidence of broken or damaged windows or doors, he could not have "burglarized" Victim-2's home. But a forced entry is not required; it is sufficient if the defendant enters a building "without authority."⁷ The evidence supported a finding that Brown entered Victim-2's home without authority.

With respect to the second victim, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brown was guilty of aggravated assault with the intent to rape (Count 4) and burglary (Count 5).

(c) With regard to Victim-3, Brown was found guilty of criminal attempt to commit burglary (Count 6) and peeping Tom (Count 7). Construed to uphold the jury's verdicts, the evidence regarding the third victim shows that on July 8, 1995, at approximately 5:50 a.m., Brown was crouching at the window ledge of Victim-3's bedroom, attempting to pick the lock. Returning from taking a shower, Victim-3 noticed a shadow and snatched back the curtain, discovering Brown with something in his hand. Brown jumped away, stared at Victim-3 momentarily, then walked to another side of the building. She continued to watch Brown through another window, until Brown again ran from her view. With many streetlights providing light, she was able to get a good look at Brown. She later noticed that although she had closed and locked the bedroom window before going to bed, the window was open approximately three inches. Without any hesitation, Victim-3 identified Brown from a photographic lineup and again at trial.

(i) Brown contends that because no one testified that the lock on the bedroom window was broken or damaged, it is not logical for the jury to find that he forced the window open. As addressed in Division 1(b)(iii) above, this contention is without merit.

(ii) Brown contends that the State failed to prove that he took a substantial step to enter Victim-3's home when the only evidence was that he was crouched at the window ledge with something in his hand. But proof of only one substantial step toward the commission of a crime is sufficient.⁸ Here Brown came to Victim-3's bedroom window at 5:50 a.m. He crouched at the window, worked to pick the lock, opened the window approximately three inches, and then fled when he realized that he had been discovered. The fact that further steps must be taken before the crime can be completed does not preclude a finding that steps already undertaken were substantial.⁹ The evidence authorized the jury's verdict that Brown took a substantial step toward entering Victim-3's home without authority.

(iii) Complaining that the State failed to prove an essential element (intent to commit rape), Brown argues that crouching at a bedroom window ledge fails to show an intent to rape. He also urges that the criminal attempt to commit burglary, with rape as the intended felony, is inconsistent with the "peeping Tom" charge.

The question of intent is one for the jury, based on its consideration of the words, conduct, demeanor, motive, and all other relevant circumstances.¹⁰ Brown's intent to commit rape was demonstrated by his spying through a bedroom window at a woman who had just finished showering, his attempt to open that window, and his flight when discovered. The two recent burglaries nearby in which Brown sexually assaulted the female residents also are proof of his intent to rape in this instance.¹¹

Because Brown failed to argue the issue in his brief, his conclusory contention that the charge of criminal attempt to commit burglary is inconsistent with the "peeping Tom" charge is deemed abandoned.¹² Moreover, the inconsistent verdict rule has been abolished in criminal cases.¹³

With respect to the third victim, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brown was guilty of criminal attempt to commit burglary with intent to rape¹⁴ (Count 6) and peeping Tom¹⁵ (Count 7).

2. Brown urges that the trial court erroneously admitted hearsay statements of several witnesses.

(a) Brown's sister, who testified that she approached Victim-1 regarding the charges against Brown, denied making any comments concerning Brown's prowling. On rebuttal, the State reexamined Victim-1, who testified that she overheard Brown's sister stating, "I done told him about prowling." Victim-1's testimony is admissible under the prior inconsistent statement exception to the hearsay rule, and no limiting instruction was necessary.¹⁶

(b) During the pretrial hearing, the trial court granted Brown's motion in limine to exclude hearsay statements that Debria Swanson claimed to be Brown's girlfriend. During trial, however, one of the arresting officers testified that Swanson stated during Brown's interview at the police...